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Appeal from the District Court of the United States for the West ern District of New York.

Proceeding by John O'Hare for a writ of habeas cores From an order denying the writ (171 Fed. 190, per toner appels Reversal

O'Hare was arrested by the United States marshal in the on of Buffalo on a charge of violating sections 3345, 3381, and 3862. Rev St. (U. S. Comp. St. 1901, pp. 3632, 364), and the acts and stateres amendatory thereof. He was held by a United States commissioner for the action of the grand jury and emitted to the county jail Writs of habeas corpus and certior issued, and after a hear

In the case of Cheuvront v. Horner, 62 W. Va. 476, 53 S. E. 964, it is said:

"The evidence relied mon by Horner and his wife to rebut the presumption of frand in the transfer of the property by the husband to the wife falls short of the rule that the burden is upon the wife to show by clear and satisfactory evidence that the transaction was made in good faith, the consideration adequate and vainanie and that the consideration was paid out of her separate estate. All the testimony on this line, and in relation to these conveyances of the property from husband to wife, we find to be either wholly uncertain as to the amount of money claimed to have been invested in the property of the wife, or to he of questionable and suspicions character. This testimony is whol. 7 insufficient to meet the rule that when a wife calms in a contest against the creditors of her husband to have purchased real estate there is a presumption against the bona fides of the transaction, which she cannot overcome except ng clear and full proof that the property was paid for by her with money derived from some other contre than her husband. Miller ▼ Olaple 54 W. Ta, 470 46 8., E. 451); Boss ▼ Timmons, 29 W. Va. 441 (2 8. FL 780. & Am. St. Rep. FA,: Spence v. Smith, 34 W. Va. 697 (12 8. FL 828). and many other cares The claim undertaken to be made by this testimony on behalf of the husband and wife le that there was a secret parol agreement, at the time of the purchase of the property, that the bushand was to hold it in his name in trust for the wife, and the wife in her testimony says that this was to give him a better rating in business. The only evidence of such secret trist is that of the husband and wife. This cannot overcome the presumption nor prevail against the creditor in such case.

While there are some statements in the petition tending to show that, among other things, it is the claim of the petitioner that she is entitled to be subrogated to the rights of the vendor, upon the theory that she paid the purchase money, and that, therefore, she should be permitted to enforce the collection of the money due her under the original vendor's Ben. This claim, however, is not seriously insisted upon in this court, as we understand it; but if it were, we are inclined to the opinion that the evidence is not sufficient to sustain such contention.

For the reasons hereinbefore stated, we are of opinion that there is no error in the ruling of the court below, and that the judgment of that court should be

Affirmed.

Ex parte O'HARE.

(Circuit Court of Appeals, Second Circuit, May 2, 1910.)

No. 241.

1. CRIMINAL LAW (3975)-JURISDICTION-LOCALITY OF Offense

"HAVEN.”

Waters inclosed in whole or in part by a breakwater or other artificial structure to afford a protected anchorage, as well as those so inclosed by natural land, constitute a "haven" within Rev. St. 8 5246, 5361, 5362 (C. 8. Comp. St. 1901, pp. 3830, 3740), making certain acts offenses against the United States when committed "upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay within the adFor other cases see same tople & TMERR in Dec. & Am. Diga. 1907 to date, & Rep'r Indexes

"Sec. 5361. Every person who, upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, by surprise or by open force, maliciously attacks or sets upon any vessel belonging to another, with an intent to unlawfully plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof shall be punished by a fine of not more than five thousand dollars, and by imprisonment at hard labor not more than ten years. "Sec. 5362. Every person who, upon the high seas, or in any other of the places mentioned in the preceding section, with intent to commit any felony, breaks or enters any vessel, or maliciously cuts, spoils, or destroys any cordage, cable, buoys, buoy-rope, head-fast, or other fast fixed to the anchor or moorings belonging to any vessel, shall be punished by a fine of not more than one thousand dollars, and by imprisonment at hard labor not more than five years."

The acts complained of took place on the "John Mitchell," a steel steam vessel of 4,000 tons, belonging in whole or in part to citizens of the United States and registered and enrolled under the laws of the United States. She had been berthed for the winter in the Blackwell Canal, Buffalo, and on May 13, 1909, was towed by a tug to a point about 300 feet inside the old Buffalo breakwater, where she was anchored for the purpose of fitting her out. The alleged assault, etc., took place May 18th.

This

It will appear from the section quoted that the federal government entertains jurisdiction where the vessel is in a "haven," only when such haven is out of the jurisdiction of any particular state. restriction "does not apply to vessels on the high seas of the lakes.” U. S. v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, 37 L. Ed. 1071. The question here presented is whether the "John Mitchell" was upon the high seas of Lake Erie, or in a haven connected therewith. No one disputes the fact that the state of New York has jurisdiction of the locus in quo.

From a point on the shore of the lake nearly opposite the westerly line of the city of Buffalo, there extends for about half a mile in a northerly direction the Stony Point Breakwater. Five hundred and fifty feet beyond it comes the South Breakwater, which runs, also northerly, nearly two miles. Two hundred and fifty feet beyond it comes the Old Breakwater which runs, also northerly, about a mile and a half, and ends opposite Buffalo Light at the entrance of Buffalo creek and the beginning of the Niagara river. These three structures practically constitute a single breakwater with entrances through it at two places to the waters inclosed between it and the shore. This structure is about 3,000 feet from the shore line and half that distance from what is designated on the government chart, published by the War Department in 1906, as the "Buffalo Harbor Line," which last is substantially a 17-foot line; there being deeper water between it and the breakwaters. The body of water thus inclosed is designated. on the said chart as the "Outer Harbor" of Buffalo. Manifestly it affords an anchorage and refuge for shipping from westerly and southwesterly storms. The John Mitchell lay near the middle of the Old Breakwater about 300 feet in shore from it. A section from the chart shows the situation in detail:

It is contended that, because the breakwater is an artifical structure, the water which it cuts off from the main body of Lake Erie cannot be considered a "haven" or a "basin" within the meaning of these sections. Sir Matthew Hale's definition of a "haven" is quoted, italicized as follows:

"A place of large receipt and safe riding of ships so situated and secured by the land circumjacent, that vessels thereby ride and anchor safely, and are protected by the adjacent land from dangerous and violent winds." Hale, De Jure Maris, c. 2, 2.

This definition is quoted verbatim in recent law dictionariesStroud, Burrill, Black, and Bouvier. We do not know to what extent, in Hale's time, harbors, havens, and basins had been artificially created. There does not seem to be any reasonable distinction be